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Editor’s Note: It’s been nearly a year since Civil Beat published Hawaii’s part in the national State Integrity Investigation, a nationwide project that looked at how accountable state governments are to their citizens. Hawaii received a D- for lobbying disclosure, one of 14 measures used to rank states in a national scorecard of sorts. Now, a small group of Hawaii community leaders is spearheading an effort, possibly in time for this year’s legislative session, to try to bring that score up.
This is the second of a three-part series that examines Hawaii’s lobbying disclosure law and looks at what we can learn from how other states handle oversight of lobbyists.
Hawaii led the nation four decades ago when it became one of the first states to pass a lobbying law and create an Ethics Commission to administer it.
But the law has been stuck in time. Efforts to substantially update it or strengthen it have failed year after year.
Hawaii was one of the first states to require any kind of disclosure. The law still has solid basic provisions requiring lobbyists and lobbyist employers to register, say who they’re lobbying for and reveal how much money they’re spending.
But the need for revision has become increasingly apparent, according to government watchdogs. More frequent reporting, more details on spending, more information on personal financial relationships is necessary and penalties should be easier to assess, they say.
In the past decade, lawmakers have introduced about three dozen bills to beef up the state’s lobbying law. Few passed and hardly any even received a first hearing.
Last session, for instance, the Senate Judiciary Committee, under Chair Clayton Hee, wouldn’t hear a proposed resolution that just called for the creation of a task force to study the lobbying disclosure law.
Dan Mollway, who served as the Ethics Commission’s executive director from 1986 to 2010, said Hawaii’s lobbying law could be improved if it weren’t for legislators standing in the way.
“The resistance is just overwhelming,” he said.
Mollway cited as an example his effort to get a bill through the Legislature that required lobbyists to complete a third annual disclosure report, due mid-session. Although he was eventually successful in getting it passed, he said, “it took heaven and earth to get done.”
One of the only significant changes to the lobbying law over the past 10 years was made in 2001, and that was to lighten the penalties for wrongdoing. Then-Gov. Ben Cayetano signed a bill that decriminalized violations of the lobbyist law.
The ethics commission supported the bill at the time because it increased the statute of limitations to three years and theoretically made it easier to enforce the lobbying law.
But a decade later, the commission is still trying to fix what Kondo said he considers an oversight that happened when the law was changed. A package of proposals the commission approved in December includes a measure that would make it easier to find someone guilty.
When lawmakers changed the law by making violations administrative instead of criminal, they kept language that said violations must be willful. The commission wants the Legislature to delete the word willful.
Mollway said the “willful” standard creates a barrier because it requires intent.
“It makes the law almost impossible to enforce,” he said. “Changing the term ‘willful’ is a big deal. It will be more than an uphill battle to change it.”
But Mollway said leaving “willful” in the law wasn’t an oversight. He said removing it would have killed the bill because it would have been seen as too radical a change.
Instead, Mollway said he was pleased at the time to get a bill passed that set forth a three-year statute of limitations and gave the commission primary jurisdiction in enforcement.
Longtime lobbyist Bob Toyofuku, who represents 14 clients ranging from the Hawaiian Humane Society to Hawaiian Airlines, said he would have to look at the proposal to see if it is something he would support. He said violations are sometimes unintentional, particularly with missed deadlines.
“It’s important to hold everyone to the letter of the law though,” he said.
Although that’s the only lobbying-related piece of legislation the commission plans to put forward this session, Kondo said work continues within the agency to improve how state officials can apply the law.
“At this point, the commission is certainly considering ways to make what’s reported more meaningful,” he said. “What is reported currently doesn’t provide a lot of meaningful information to people who are interested to know how much money is being spent on lobbying activities and, more specifically, money spent on entertainment and gifts to legislators and other state officials.”
Ihara said it’s time to have a public discussion about lobbying disclosure reports.
“The lobbyists disclosure law would give the public basic information in order to assess the activities of lobbyists and their efforts to influence public officials as decision-makers,” he said. “You look at the disclosure reports now and you can’t tell that there’s very much happening. It looks like they don’t lobby very much. You don’t know the activities. You don’t know what they’re lobbying on. You don’t know who they’re lobbying.”
Ihara re-introduced a slightly modified version of Senate Bill 2954, which died in the Judiciary Committee last session. The comprehensive bill, called Senate Bill 832 this session, would do a lot to reform the lobbying law.
It would start by requiring lobbyists and their clients to make monthly disclosures when the Legislature is in session. Currently, they only have to file reports three times a year, far less frequently than some states.
SB832, which was referred to the Judiciary Committee Tuesday, would also add new disclosures regarding lobbying events, contractual relationships with legislators and campaign contributions while broadening the law’s reach.
Lobbyists can donate to legislators’ political campaigns during session; in fact, much of an incumbent’s campaign treasury is built during session.
But lawmakers’ campaign finance reports aren’t due until after the Legislature adjourns. So even if a legislator takes the initiative to disclose financial relationships with lobbyists, the information is not available to the public when it is most relevant.
The vast majority of lobbying disclosure reports — which are available to the public only by viewing them at the commission’s office in Honolulu — provide little, if any, useful information, Kondo said.
Under the current law, lobbyist reports show how much money different organizations, such as employee unions or healthcare companies, pay lobbyists. But few specifics are included.
“When a lobbyist takes that money paid to him or her and uses it for entertainment purposes and lobbying expenditures, whether it’s meals or gifts, that kind of stuff gets lost in the reporting,” Kondo said.
The 2012 financial reports that have been filed so far show organizations have spent almost $2.3 million on lobbyists. This includes big spenders like the National Electrical Manufacturers Association, Syngenta Crop Protection and Hawaii State Teachers Association. The union reported spending more than $47,000 from March 1 to April 30, decisive weeks in the Legislature.
But that’s about where the transparency ends. Lobbyists rarely give an itemized breakdown of how they spent the money and who they spent it on. That’s something that Ihara and others have tried to fix for years.
Toyofuku said he believes the state’s lobbying law works pretty well for the most part.
“We have to register. There’s very specific criteria as to the amount of time you spent lobbying or money you spent,” he said. “From the lobbyist standpoint, that’s a clear requirement.”
As with any agency, Toyofuku said there are sometimes concerns over whether a person is truly lobbying and should register. He added that consistent enforcement can be an issue due to limited staff.
The commission is asking the Legislature this session to add $60,000 to its roughly $848,000 annual budget so it can keep an analyst position that was filled this year by shifting funding from other sources.
Mollway described the commission’s budget as “pathetic.”
“It had me working day and night, 24/7, just to keep the commission sort of functional,” he said. “The commission’s budget and staff should be doubled or tripled at least.”
Melissa Pavlicek, another active lobbyist in Hawaii, said the state’s lobbying law is generally very good and promotes transparency and accountability. She represents 10 clients, including Safeway and Kamehameha Schools, according to the most recent registration report.
Having served on the state dental board and Aloha Tower development board, Pavlicek said she is used to financial disclosure forms. She said she supports transparency and accountability, but isn’t sure how much detail should be required or if it should all be publicly disclosed.
Gary Slovin, a former state ethics director who is now a lobbyist, has seen both sides. Decades ago, he created some of the registration and disclosure forms that he now has to fill out.
Slovin said he thinks the current law is working well, but there could be room for some tweaks.
“The main issue is really disclosures,” he said. “The public needs and wants to know who is lobbying in the government and what they’re paid for it, which is required under present law.”
Coming Thursday: What we can learn from other states